Defendant Edwin Richardson has filed two appeals, A–5721–09 from an order of June 7, 2010, denying defendant's motion to change “a sentence as authorized by the Code of Criminal Justice,” R. 3:21–10(b)(4), and A–2962–09 from an order of July 24, 2009, denying his motion to correct an illegal sentence. By sua sponte order of the clerk of this court, the appeals were consolidated.1

Both appeals concern a life sentence imposed on defendant's conviction for murder, which was entered based on defendant's May 1976 plea of non vult to murder. When this homicide was committed and when defendant and his co-defendant, William Hancock, entered pleas of non vult to murder and were sentenced, the Code of Criminal Justice, which took effect on September 1, 1979, had not been adopted. L. 1978, c. 95, amended by L. 1979, c. 178, § 1. His co-defendant received a different sentence, between twenty-five and twenty-eight years.

The murder was committed by defendant in the course of robbing the cab driver who was killed. Defendant acknowledged that he was the shooter. Although much of the record is apparently lost, defendant's and Hancock's respective judgments of conviction are included in the record provided to this court. Hancock's judgment includes the following statement of reasons: “This offense took place during a robbery of [a] cab driver. Defendant did not fire [the] shot but knew his co-defendant was armed. Admits prior cab robbery․”

The statement of reasons on defendant's judgment of conviction indicates that the crime was committed during a robbery and sets forth mitigating facts, including defendant's age — he was nineteen at the time of the crime — and lack of a prior conviction. That judgment does not state the important distinction between defendant and Hancock — that defendant was the one who had the gun and killed the cab driver. But that distinction between the role played by defendant and Hancock, not recited in the judgment, explains the court's observation that defendant's “crime must require severe and long incarceration.”

Defendant's plea of non vult was entered pursuant to an agreement with the State that included no promises about the sentence but called for the State to dismiss two additional counts of the indictment, 2089–75, and a separate indictment, 2353–75. See State v. Richardson, No. A–4803–75 (App.Div. Apr. 26, 1978) (slip op. at 6), certif. denied, 78 N.J. 329 (1978). The plea form defendant signed indicated that the court could impose a sentence of not more than life, and the form his co-defendant signed indicated that the court could impose a sentence of not more than life or thirty years.

On defendant's direct appeal, he challenged the judge's correction of a sentencing error, which the judge detected after pronouncing sentence but prior to entry of the judgment. In addition, defendant challenged the sentence as contrary to the plea agreement. A panel of this court affirmed, and the Supreme Court denied certification. Id. at 7.

Defendant filed a petition for post-conviction relief in 1978, which was denied. Although defendant filed an appeal, A–1169–78, that appeal was dismissed by stipulation filed with this court on October 23, 1979.

Subsequently, the United States District Court for the District of New Jersey denied defendant's petition for a writ of habeas corpus. U.S. ex rel. Edwin J. Richardson v. Gary Hilton, et al., Docket No. Civil 79–195 (Mar. 28, 1975).

Defendant next sought resentencing pursuant to N.J.S.A. 2C:1–1(d)(2), which provides

Any person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date which has been eliminated by the code or who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense and who, on said effective date, has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown as though the person had been convicted under the code, except that no period of detention or supervision shall be increased as a result of such resentencing.

Defendant first sought a change in his sentence authorized by the foregoing statute before the trial court in 2005, a resentencing panel in 2006 and by way of a petition for certification filed in 2007.2 The Supreme Court denied that petition. Richardson v. State, 192 N.J. 72 (2007). In all three of those applications, defendant argued good cause based on the disparity between his sentence and his co-defendant's sentence.

Following the denial of his petition for certification, defendant moved before the trial court for an order correcting an illegal sentence. The trial court denied that motion on July 24, 2009, on the ground that the law permitted the sentence. The law in effect when this crime was committed and at the time of defendant's plea of non vult and sentencing permitted a sentence of either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree. N.J.S.A. 2A:113–3; see also N.J.S.A. 2A:113–2 (defining first-degree murder to include murder committed in perpetrating a robbery); N.J.S.A. 2A:113–4 (providing for a sentence of imprisonment for no more than thirty years for second-degree murder).

Although defendant's motion was cast in terms of the illegality of his sentence, defense counsel presented an oral application for resentencing pursuant to N.J.S.A. 2C:1–1. The judge and, presumably, the attorneys were under the mistaken impression that defendant's request for resentencing pursuant to N.J.S.A. 2C:1–1 was a new claim. The judge said it was a new claim, and neither of the attorneys nor defendant corrected him. For that reason, we assume that the lawyers did not know and defendant did not recall.

In any event, the judge entered an order denying the motion for correction of an illegal sentence and allowing defendant to amend his motion to assert a request for resentencing pursuant to N.J.S.A. 2C:1–1. The judge heard argument on the amended motion on August 14 and October 2, 2009 and again on May 21, 2010. The judge set forth his reasons for denying resentencing in a written opinion issued on June 7, 2010. There is no indication that any attorney ever advised the judge that defendant had previously sought and been denied resentencing pursuant to N.J.S.A. 2C:1–1.

Defendant's attorney has submitted one brief on the consolidated appeals and raises one point for our consideration:

THE DISPARITY BETWEEN DEFENDANT'S SENTENCE AND THE SENTENCE IMPOSED ON HIS CO–DEFENDANT RENDERS THE DEFENDANT'S SENTENCE ILLEGAL.

Defendant has submitted two supplemental briefs, one on each appeal. With respect to the July 24, 2009 order, denying his request for relief from an illegal sentence, defendant raises a constitutional claim not raised in the trial court:

EQUAL PROTECTION CLAUSUES [SIC] OF STATE AND FEDERAL CONSTITUTIONS PROHIBIT UNEQUAL TREATMENT AGAINST [SIC] PERSONS WHO SHOULD BE TREATED ALIKE.

With respect to the June 7, 2010 order denying his request for resentencing pursuant to N.J.S.A. 2C:1–1, defendant argues:

WHERE THE BURDEN TO SHOW “GOOD CAUSE” RESTS UPON THE DEFENDANT[,] HE SHOULD BE AFFORDED THE OPPORTUNITY TO DO SO.

There is no reason for extended discussion of defendant's claims based on sentencing disparity. The disparity in sentencing that warrants relief is unjustified or arbitrary disparity. With respect to sentencing of co-defendants for a murder, the fact that one was holding the gun that killed the victim and one was not armed is a significant, not an arbitrary, distinction. See, e.g., State v. Williams, 317 N.J.Super. 149, 159 (App.Div.1998), certif. denied, 157 N.J. 647 (1999).

The other arguments raised by defendant have insufficient merit to warrant any discussion in a written opinion. R. 2:11–3(e)(2). His sentence is not illegal and his request for resentencing pursuant to N.J.S.A. 2C:1–1 has been conclusively resolved in a prior proceeding that was undoubtedly finalized by the Supreme Court's denial of his petition for certification in 2007. Richardson, supra, 192 N.J. at 72.